Ownership-transfer Of Property

CONCEPT AND FUNCTION OF OWNERSHIP AND DISTINCTION BETWEEN OWNERSHIP AND POSSESSION

a) b) c) d) e)

1. INTRODUCTION: The idea and concept of ownership is developed by slow degrees with the growth of civilization. In primitive societies the only concept known to human mind was that of possession. It was much later that the concept of ownership adopted. So long as the people were wandering from place to place and had no settled place of residence, they had no sense of ownership. The idea began to grow when they started planting trees, cultivating lands and building their homes. The transition from a pastoral to an agricultural economy helped the development of the idea and concept of the ownership. Thus, ownership denotes the relation between a person and an objective forming the subject matter of his/her ownership. The normal case of ownership can be expected to exhibit the incidents as follows: First, the owner will have a right to possess the thing which s/he owns. Secondly, the owner normally has the right to use and enjoy the thing owned. Thirdly, the owner has the right to consume, destroy or alienate the thing. Fourthly, ownership has the characteristics of being indeterminate in duration. Fifthly, ownership has a residuary character. 2. MEANING AND DEFINITION OF OWNERSHIP: The literal meaning of the term ‘own’ is to have or hold a thing. The one who holds a thing as his own is said to be the owner and has right of ownership ever it. Thus in the non-legal sense ownership may be defined as the right of exclusive control over and disposal of a thing at will. In the legal sense the term ownership carries the meaning of right over a thing to the exclusion of all other persons. This implies non-interference by others in the exercise of this right and must be distinguished from mere holding of a thing in one’s possession. Normally ownership implies, the right to possess, the right to use, the right to manage, the right to capital and the right to income. The concept of the ownership is one of the fundamental juristic concept common to all system of law. Different writers have defined ownership in different ways. Austin defined ownership as ‘a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration.’ Austin’s definition thus implies thee attributes viz., a) indefinite user, b) unrestricted disposition and c) unlimited duration. Holland‘s definition: Austin’s definition of ownership has been followed by Holland. He defines ownership as plenary control over an object. According to him an owner has thee rights on the subject owned:a) Possession b) Enjoyment c) Disposition According to Salmond, ‘Ownership in most comprehensive significance denotes the relation between a person and any right that is vested in him.’ That, which a man owns, according to him, is in all cases a right. Ownership in this wider sense extends to all classes of rights, whether proprietary or personal, in rem or in personam, in re-propria or in re-aliena. He adds that it applies not only to rights in the strict sense but also to liberties, powers and immunities.

Thus, according to Salmond ownership vests in the owner a complex of rights which s/he exercises to the exclusion of all others. For Salmond what constitutes ownership a bundle of rights which in here in an individual. Salmond’s definition thus points out two attributes of ownership:a) Ownership is a relation between a person and rights that is vested in him; b) Ownership is incorporeal (immaterial, having no material body or form). For Salmon a man may own a copyright or a right of way in the same way as s/he owns a piece of land because in all the cases s/he owns only a right and not a thing. Hohfield expresses a similar view (like that of Salmond) when he says ownership is not a right but a bundle of rights, privileges, powers etc. Duguit has defined, ‘Ownership is a relation between a person and a thing. On account of this relation the person has the power of disposal, use and enjoyment of the thing.’ We may conclusion say thata) Ownership is a right which comprises of powers, claims, privileges, etc. b) Ownership is in respect of a thing which may be corporeal or incorporeal. c) The rights relating to or in connection with ownership are subject to state regulation i.e., can be limited or restricted by law. d) Owner is he who is entitled to the residue of rights with respect to an object left after the limitation resulting from the voluntary acts of the owner (mortgage, lease or hire) or those imposed by law are exhausted, e) Ownership does not imply or indicate absolute or unlimited rights either regarding use, disposal or duration. 3. ESSENTIALS OF OWNERSHIP: i. The first essential of ownership is that it is indefinite in point of user. It is impossible to define or sum up exhaustively the wide variety of ways in which the thing owned may be used by the person entitled to its ownership. ii. Another essential of ownership is that it is unrestricted in point of disposition. An owner can effectively dispose of his property by a conveyance during his lifetime or by will after his death. iii. The owner has a right to possess the thing which s/he owns. iv. The owner has the right to exhaust the thing while using it, if the nature of the thing owned is such. v. Another essential of ownership is that it has a residuary character. An owner may part with several rights in respect of the thing owned by him/her. vi. Generally, the owner has the right to destroy or alienate the thing s/he owns. 4. CHARACTERISTICS OF OWNERSHIP: i. Ownership is absolute or restricted. It may be limited to a lesser or greater extent, either voluntarily or under compulsion of law. ii. Right of ownership may also be restricted national emergency. iii. An owner has to pay taxes to the state and exercise of his right of ownership. iv. An owner must not exercise his right of ownership in such a way as to infringe the right of other owners. v. An owner has not the freedom to dispose of his property in any way he likes. S/he can not transfer the property to defraud his creditor. vi. Infants and lunatics are under a disability in the eye of law because they can neither understand the true nature of their acts nor the consequences. vii. Ownership does not generally terminate with the death of the owner. It passes to legal heirs in case of intestacy. 5. THE SUBJECT MATTER OF OWNERSHIP: The prime subject matter of ownership consists of material objects such as land and chattels. But ownership is by no means limited to things of this category. A human being’s wealth may consist of

such things as interests in the land of others, debts due to him, shares in companies, patents, designs, trademarks, copyrights and so on. Salmond indeed took the view that the true subject matter of ownership has to be a right in all cases. I.

II.

6. CRITICISM: Austin’s view of ownership has been criticized on various grounds; a. It is pointed out that ownership is not a right but a bundle of rights. It is the aggregate or sum total of the rights of user and enjoyment. b. Ownership is not merely a right but also a relationship between the right owned and the person owning it. c. The idea of the right of indefinite user is also attacked. Many limitations can be put upon that user. The owner must use his property in such a way as not to interfere with the rights of others. Salmond’s view of ownership has been criticized by many writers; a. According to Duguit, ownership is a relationship between a person and a thing over which he is permitted, on account of this relationship, complete disposal, use and enjoyment. What is owned is a thing and not a right. b. According to Cook, there are many rights which a person may possess and to use the term ‘owner’ to express the relationship between a person and a right is to introduce necessary confusion. Ownership is the name given to the bundle of rights. c. According to Kocourek, ownership is a relationship of the owner and a right to a thing which can be economically enjoyed. The right of ownership is a matter of legal protection. 7. METHODS OF ACQUIRING OWNERSHIP: A thing is capable of being owned, the methods of acquiring ownership over it will vary from legal system to legal system. There are two modes of acquisition of ownership and those are original and derivative. Original acquisition can be absolute: res nullius and by occupation. Basically, one can acquire ownership in two ways: i. by operation of law or ii. by reason of some act or event. As to the first, a statute might provide that all A’s property should after a certain period of time vest in B. As to the second this may consist in the first taking or madding a thing, both being cases of original acquisition. Thirdly, the thing may fall into man’s ownership without any human act, as would be the case if a piece of land were to break off from an island in a river and attach itself to my land on the opposite bank. 8. CLASSIFICATION OF OWNERSHIP: Ownership may be of various kinds. Broadly, it may be classified under the following headsI. Vested and Contingent ownership II. Sole and Co-ownership III. Corporeal and Incorporeal ownership IV. Legal and Equitable ownership V. Trust and Beneficial ownership VI. Absolute and Limited ownership I. Vested and Contingent ownership Ownership is either vested or contingent. It is vested when the owner’s title already perfect, it is contingent when his title is as yet imperfect, but is capable of becoming perfect on the fulfillment of some condition. In the former case the ownership is absolute; in the latter it is merely conditional. Once it is matured it automatically converts into vested type of ownership. II. Sole and Co-ownership

Sole ownership indicates the singular control over the property. In this concept an individual only entertains all sorts of rights of ownership over his owned property. Co-ownership is a concept of plural or multiple owners holding right over the particular property. A single person cannot entertain the rights of ownership in group. III. Corporeal and Incorporeal ownership Ownership over any material object which can be movable or immovable but tangible objects is called corporeal ownership. Incorporeal Ownership means ownership over the immaterial things such as right over patent, design, trademark, copyright etc. IV. Legal and Equitable ownership The distinct between legal and equitable ownership is limited in English common law only. Legal ownership is a legally defined and protected property. Generally, ownership is understood as a legal ownership. In other words, legal ownership is that which has its origin in the rules of the common law. Equitable ownership is basically carried out from the Chancery courts of UK. Equity courts protect the rights of property. Equity law granted rights were the concept of equitable ownership. Equity law is a concept of natural law philosophy. It does have no practicability to rest of the world. V. Trust and Beneficial ownership Trust ownership is also known as duplicate or dual types of ownership. It is well defined right that one should use the right to favor other. This kind of ownerships looks like ceremonial having no powers. Beneficial ownership is relating to rights over the trust to use the authority in favor of the trust itself. This type of ownership is taken as a real ownership because it is powerful and using right to favor the trust is to benefit all trustees. Moreover user is none other than a trustee. VI. Absolute and Limited ownership Absolute ownership is a concept of right having no any conditions. Particular property is totally under the control of owner. Limited ownership is a conditional approach of the rights over the property. It is basically based on contract law or dependency and various defined limitations towards the entertainment of right relating to ownership. 9. FUNCTION OF OWNERSHIP: From the above mentioned definition, characteristic and classification etc.function of the ownership is itself clear. According to Dias, the function of the ownership is as follows: The ownership has been stated that as right in itself, distinct from its component jurally relations, has always been usefully for identifying certain groups of interests and for distinguishing them from others. This is because ownership of these special groups was originally an index not merely to wealth, but to social position, and it was socially significant in other ways as well. Possession, as has been seen, is a judicial concept and an instrument of judicial policy. In the words of Lord Evershed ‘property like other interests has a social obligation to perform’. In English law the various forms of land holding designated a man’s social standing, where as chattels, being fungible, did not have this function. Ownership of land was also a means of controlling government in so far as the qualification to vote was based upon it. Dominium in Roman law connected sovereignty, which is essentially a social concept and something more than just ownership, things of ownership the earliest forms of roman property, were precisely the things that were important to a primitive agricultural community. B. DISTINCTION BETWEEN POSSESSION AND OWNERSHIP: According to Ihering, “Possession is the objective realization of ownership.” It is the external realization of ownership. It is a valuable piece of evidence to show the existence of ownership. It is in fact what ownership is in right. It is the de facto exercise of a claim while ownership is the de jure recognition of that claim. Possession is the de facto counterpart of ownership. It is the external form in which rightful claims normally manifest themselves. For example, a rented house is actually in possession of the tenant but the ownership of it is vested in the landlord.

According to Salmond, “ownership in its widest sense implies “the relation between a person and any right that is vested in him. Possession is in fact what ownership is in right. Bringing out distinction between possession and ownership Salmond pointed out that a person is said to be the owner of a thing when his claim receives the recognition and protection from the law of the state, but possession may be exercised and realized even without such recognition or protection from the law. Thus ownership has the guarantee of law but possession has some measure of security and value from the facts, without any possibility of support from land. According to Austin, ownership in its wider sense is a right “indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration”. The right of alienation of property is a necessary incident to the right of ownership, but there are many restrictions with regard to the alienation of property today. According to Pollock, “Ownership may be described as the entirety of the powers of use and disposal allowed by law. The owner of a thing is not necessarily the person who at a given time has the whole power of use and disposal; very often, there is no such person. We must look for the person having the residue of all such power when we have accounted for every detached and limited portion of it, and s/he will be the owner even if the immediate power or control and user are elsewhere”. Possession and ownership differ in their mode of acquisition. The transfer of possession is comparatively easier and less technical but the transfer of ownership in most cases involves a technical process of convincing. Relation between Possession and Ownership We have already adverted to the chief differences between possession and ownership. Speaking generally, ownership and possession have the same subject matter. Possession has been treated as an external evidence of ownership. A person in possession of a thing may be presumed to be the owner of it. The person in possession need not prove his ownership; instead, the burden of disproving ownership of the possessor is on the person who disputes his ownership. A long continuous and uninterrupted possession is an effective method of realization of ownership. According to Salmond, the subject matter of possession and ownership is more or less the same, a thing which may be owned, may also be possessed. Likewise, a thing which may be taken into possession may also be owned. Salmond held that whatever may be owned may be possessed, and whatever may be possessed may be owned. Salmond further pointed out that “the law of prescription determines the process by which through the influence of time, possession without title ripens into ownership and ownership without possession withers away and dies”. According to Sethna, the relationship between ownership and possession is same as that of body with soul. Just as existence of body is necessary for the realization of soul, likewise possession is necessary and useful for the expression of the ownership because it (possession) is external and formal. Sir Henry Maine suggested that historically, the concept of possession is prior to that of ownership. In fact, right of possession has evolved out the right of ownership. On the basis of above discussion, we can compare ownership and possession in this way in brief: Ownership

Possession

i.

Ownership is an absolute authority over the property. ii. Ownership is perfectly legal right. It shows legal situation. iii. Ownership is a de jure concept. iv. Ownership right is wider concept. v. Ownership holds unlimited and uncontrolled rights. vi. Transfer of ownership is not easy and it needs to legal or formal procedures, prerequisites of registration. vii. Ownership has no technical obstructions to transfer. viii. Ownership is a union of ownership and possession. ix. Ownership only does not carry practical use in the absence of possession. x. Ownership does not get priority if there is an equal right over the same property.

i. Possession is relative authority holding physical control over the property. ii. Possession is possessory right only. It shows real situation. iii. Possession is a de facto concept. iv. Possession is a right of consumption only. v. Possession right is limited concept of right. vi. Possession is comparatively easy and practically no need to register and such formalities. vii. Possession faces the technical obstacles for transfer. viii. Possession is a single concept giving no right of ownership. ix. Possession may create ground for the ownership as well. x. Possession is the real and basis of priority for the situation of equal rights.

Possession is the de facto exercise of a claim while ownership is the de jure recognition of it. Possession is the guarantee of fact whereas ownership is the guarantee of law. A claim to possession is maintained by one’s own self asserting will but a claim to ownership is legally protected by the will of the State. Ihringobserved that possession is the objective realization of ownership. Possession in fact, is what ownership is in right. The distinction between possession and ownership on the basis of fact and right is not tenable. Fact and right are not quite separate and independent ideas. One cannot exist without the other. Conclusion, The way of ownership, philosopher Salmond, had indicated the ownership cooperates with person and right. Austin quoted right to user of indefinite nature, Holland concerned for power to the possession, enjoyment and ownership. Basically, ownership functions according to its definition and characteristics. In the functionally, it has social position and significant. It has the judicially as well as social control and policy. Ownership of land was also means of controlling government. By the way ownership is depends on according to the nation’s government. Although, philosopher defined its nature, definition, acquisition, kinds and function related with possession, owner, right and so on but it has naturally right with the nation about property, citizens and power. At last, we can say that ownership is strictly a legal concept and possession is non-legal and prelegal concept, so they have basic different but closely co-related with each other.